In This Issue

• Public Records Law
  • State Disclosure Law Trumps Federal Law
  • Social Security Numbers
• Discharge of Public Employees
  • Public Policy Discharge
  • Arbitration Decisions

Public Records Law

Lawrence F. Feheley

State Disclosure Law Trumps Federal Law

The City of Cincinnati Health Department conducted inspections of residences for lead-based paint. In many instances, the Department issued lead-citation notices to the property owners of units reported to be the residence of children where blood tests indicated elevated lead levels. The local newspaper asked for copies of all of the lead citations issued over a ten-year period. The Health Department refused, on the dual basis that (a) the report contained protected health information restricted from disclosure by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and (b) the federal HIPAA law supersedes the state Open Records Act.

The Supreme Court of Ohio ruled the records did not contain protected health information under HIPAA, and therefore the records had to be released. However, the Supreme Court went further. The Court ruled that even if HIPAA did apply, the records would still have to be disclosed:

"[E]ven if the requested lead citations and lead-risk assessments did contain 'protected health information' as defined by HIPAA … the citation notices and lead-risk assessment reports would still be subject to release under the 'required by law' exception to the HIPAA privacy rule because the Ohio Public Records Law requires disclosure of these reports, and HIPAA does not supersede state disclosure requirements." [State ex rel. Enquirer v. Daniels, 108 Ohio St. 3d 519 (2006)].

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Social Security Numbers

In another public records case, the County Public Defender sought to obtain court records from the City municipal court about two individuals who had been charged with crimes. The municipal court allowed the inspection, but said the production would be delayed while they redacted (removed) the individuals' social security numbers from the records. The Public Defender contended that the municipal court had no right to remove the social security numbers before providing access to the records.

The Supreme Court of Ohio ruled a public agency does not have to produce records without delay, and that a public office must have an opportunity to examine the records prior to inspection in order to make any appropriate redaction of exempt materials. One such exemption is based on the constitutional right of privacy, which "precludes disclosure of Social Security numbers." The Court observed that removing social security numbers before disclosure does not contravene the purpose of the Public Records Act, which is "to expose government activity to public scrutiny." [State ex rel. Office of Public Defender v. Siroki, 108 Ohio St. 3d 207 (2006)]. In its ruling, the Supreme Court recognized:

"armed with one's SSN, an unscrupulous individual could obtain a person's welfare benefits or Social Security benefits, order new checks at a new address on that person's checking account, obtain credit cards, or even obtain the person's paycheck … Succinctly stated, the harm that can be inflicted from the disclosure of an SSN to an unscrupulous individual is alarming and potentially financially ruinous."

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Discharge of Public Employees

Public Policy Discharge

Ohio law, created by the Supreme Court of Ohio, is that an employer cannot discharge any employee for a reason which contravenes public policy. The source of this elusive "public policy" can be found in the Constitution, statutes, regulations, or even court decisions.

After the Erie Metropolitan Housing Authority discharged its Executive Director, the Director claimed the discharge violated the public policy expressed in Revised Code 3735.28, which states:

"A metropolitan housing authority … may employ … a director … and shall fix the term of office, qualifications, and compensation."

The Director made the unique, if not nimble, argument that these words "fix the term of office" meant that the Public Housing Authority (PHA) could not hire her on an at-will basis, that her employment had to be "fixed" for a term of years, which precluded her discharge.

The Sixth Circuit Court of Appeals had no trouble rejecting the Director's argument. The Court observed that the PHA did, in fact, "fix the term of office" by employing her in an at-will capacity. [Mischer v. Erie Metrop. Housing Authority, 2006 U.S. App. Lexis 4257 (6th Cir. 2006)].

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Arbitration Decisions

The Akron Metropolitan Housing Authority suspended and eventually fired a maintenance worker. The employee and his union filed a grievance and took the case to arbitration. At the arbitration hearing, the PHA presented substantial evidence of threatening and violent conduct by the employee, as well as a pre-discharge opinion from a clinical psychologist that the employee's "anger will lead to further potentially explosive incidents." Despite this evidence, the arbitrator overturned the discharge and ordered that the employee be reinstated.

Usually, an arbitrator's decision is final and cannot be altered on appeal. One of the very limited exceptions to this rule, however, is where an arbitrator's decision would violate public policy. The Ohio appellate court found this was such a case:

"[W]e find that the trial court erred as a matter of law in finding that Grievant's reinstatement with AMHA did not violate public policy in favor of safety in the workplace. We find it significant … that the arbitration award in this case was an unconditional reinstatement, not requiring any successful rehabilitative efforts for the Grievant's anger condition prior to his returning to work, despite the findings of the counselors and psychologists that stated that Grievant was not ready to return to work.

AMHA has a duty to protect its workforce against danger posed by Grievant. It is the opinion of this court that Grievant is a danger not only to his co-workers and supervisors, but also the thousands of residents living in the public housing units operated by AMHA." [Akron Metrop. Housing Authority v. Local 2517, AFSCME, 161 Ohio App. 3d 594 (Sum. Co. 2005)].

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